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There is no Automatic Apprehension of bias when Informant and Investigation officer is same [NDPS Act]

The Hon’ble Supreme Court of India in Mukesh Singh V. State (Narcotic Branch of Delhi) [R] held that, that a person accused for an offence under the Narcotics Drugs and Psychotropic Substances Act (NDPS Act) is not entitled to acquittal on the ground that the informant and the investigating officer are the same. The Constitutional bench of the apex Court comprising of Hon’ble Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Ravindra Bhat while examining its decision in Mohan Lal V. State of Punjab [2018 17 SCC 627] held that “A contrary decision of this Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled.”

 

The Hon’ble court while examining the legal issue before it noted that the bench which decided Mohanlal did not consider in detail the relevant provisions of the Cr.P.C under which the investigation can be undertaken by the investigating officer, particularly Sections 154,156 and 157 also Section 465 Cr.P.C and Section 114 of Indian Evidence Act. It was further observed by the Apex court that in Mohan Lal’s decision there was no consideration of both the scheme of NDPS Act and the principle of reverse burden. NDPS act does not specifically bar the informant to be the investigating officer under the act, hence the effect of Mohanlal Judgement would be to amend S. 53 and other relevant provisions of the act, which is not permissible.

While examining on the question of ‘fair investigation’ under Article 21 of the Constitution of India, it was observed that “it is required to be noted that whether the investigation conducted by the concerned informant was fair investigation or not is always to be decided at the time of trial. The concerned informant/investigator will be cited as a witness and he is always subject to cross-examination. There may be cases

in which even the case of the prosecution is not solely based upon the deposition of the informant/informant-cum-investigator but there may be some independent witnesses and/or even the other police witnesses. As held by this Court in catena of decisions, the testimony of police personnel will be treated in the same manner as testimony of any other witness and there is no principal of law that without corroboration by independent witnesses his testimony cannot be relied upon. [See Karamjit Singh v. State (Delhi Administration) (2003) 5 SCC 291]. As observed and held by this Court in the case of Devender Pal Singh v. State (NCT of Delhi) (2002) 5 SCC 234, the presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor.”

The Constitutional Bench after examining various judgements of Supreme Court and High Courts held that “In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis”

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